Few things are certain these days in media law, but one thing is quite predictable: The more the courts look at the Freedom of Information Act, the easier it becomes for them to find ways to allow the government to withhold information. Last December a federal judge in Washington proved that point all over again.

Taking a cue from a U.S. Supreme Court that is less and less likely to let the press pry open government files by using FOIA, District Judge Norma Holloway Johnson denied press access to audiotape of the astronauts aboard the doomed space shuttle Challenger in 1986.

The New York Times tried for more than five years, through the National Aeronautics and Space Administration and then the courts, to obtain a copy of that tape. NASA had handed out a written transcript but refused to release a copy of the recording itself. The Times said it wanted to hear the tape to determine if there is something newsworthy about the voices of the seven astronauts who died in the explosion or any background noises in their cabin.

While the Times appears to have good editorial reasons for wanting access to the tape, it ordinarily is no business of the government or the courts how a news organization plans to treat the information it gets from the government. FOIA is not meant to shield government data from a news organization that might do something sensational or unethical with the information. If it were, it would become a censorship law – precisely the opposite of Congress' intent in passing it.

FOIA is intended to open up files. It is written so as to make disclosure the rule, not the exception, although it contains some specific exceptions. But, in the hands of the courts, the exceptions seem to be overwhelming the concept of openness.

The act's goal of openness was severely compromised three years ago when the Supreme Court ruled the aim of the law was to allow the public to learn only about "what their government is up to." That, of course, puts the act's focus solely upon the nature of governmental operations, not upon the information the government has gathered or generated.

Johnson relied heavily upon that 1989 ruling when she decided that the recording of the Challenger's final moments would tell nothing about how NASA did its job. "Even assuming..that there is some voice inflection or some background noise on the tape which indicates that the astronauts knew they were going to die, this court cannot see how that information contributes anything to the public's knowledge of how NASA operates," she wrote. "What the astronauts knew or did not know about the explosion says nothing about the operations of NASA."

But Johnson did not stop there. She used the privacy exception written into FOIA expansively to shield the astronauts' families from further emotional distress and to control intrusive reporting that the Times or others might do after getting access to the audiotape.

Under the privacy exception, she wrote, the families of the astronauts are protected from disclosure, even though no astronaut refers to any of them on the tape. And, she concluded, the families' privacy is protected by the act even though the written transcript has already revealed everything that the astronauts said. "Exposure to the voice of a beloved family member immediately prior to that family member's death is what would cause the Challenger families pain," according to the judge. ".. How the astronauts said what they did, the very sound of the astronauts' words, does constitute a privacy interest."

In addition, Johnson used the act's privacy clause as a blanket thrown over the Challenger incident in hopes of diverting the press from reporting on any more stories about that tragedy. NASA had complained that, with the tape in hand, reporters would go to family members "to obtain their reactions to hearing the voices of their loved ones" and the press in general would write more stories about the astronauts' final emotions. NASA said it was concerned that the families could not stop press inquiries, could not "stifle the public's curiosity," or could not avoid seeing news accounts about the astronauts. The NASA memorandum was accepted by the judge as part of her view that the families' "privacy interest..is a valid and substantial one."

It takes no imagination to see that NASA and Johnson intend to assume the role of editor should the press continue to show any interest in the Challenger accident. FOIA, as a result of "editing" from the courthouse, now invites government agencies to second-guess not only the kind of stories that would be written from their data but also the reporting techniques that would be used. For its part, the Times is not likely to appeal Johnson's decision.

In this case it may be only the Challenger tape that is withheld. The gaping loopholes Johnson has opened in the law, however, are now precedents on the meaning of the act for all cases involving potential privacy concerns. l

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